ITO, Ward - 51(3), Kolkata, Kolkata V. Shri Piyush Poddar, North 24 Parganas

ITA 1050/KOL/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83033 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 28-07-2011
• Court: TRIBUNAL
• Department Lawyers: VIRENDER MEHTA
• Assessee Lawyers: R K GOEL
• Keywords: Unexplained cash credit; Business income; Income from undisclosed sources; Search and seizure; Peak credit; Corroborative evidences; Accommodation entries; Reassessment proceedings
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI SHAMIM YAHYA, AM & HONBLE SR I GEORGE MATHAN, JM] ITA NO.1050/KOL/2011 ASSESSMENT YEAR : 2006-07 ( APPELLANT ) (RESPONDENT) I.T.O., WARD-51(3), `.-VS- SRI PIYUSH PODDAR KOLKATA KOLKATA (PAN:AFVPP 1955 P) FOR THE APPELLANT SHRI VIRENDER MEHTA, CIT(DR) FOR THE RESPONDENT SHRI R.K.GOEL, ADVOCATE DATE OF HEARING : 07.08.2014 DATE OF PRONOUNCEMENT : 07. 08.2014. ORDER PER SHRI SHAMIM YAHYA, AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST ORD ER OF LD. C.I.T.(A)- XXXII, KOLKATA DT. 24.02.2011 AND PERTAIN TO ASSESSMENT YE AR 2006-07. 2. GROUNDS OF APPEAL RAISED BY ASSESSEE READ AS UND ER :- 1. THAT THE LD. CIT(A) ERRED IN OVERLOOKING THE FI NDINGS OF HONBLE MADRAS HIGH COURT AND SUPREME COURT ON WHICH THE ASSESSING OFFICER RE LIED UPON. 2. THAT THE LD.CIT(A) ERRED IN ACCEPTING THE ASSESS EES CONTENTION THAT HE WAS ENGAGED IN PROVIDING ENTRIES TO VARIOUS PERSON WITHOUT ANY DOCUMENTARY EVIDENCES AND BOOKS OF A/CS, INSPITE ONCE LYING WITH THE ASSESSEE TO SUBST ANTIAL ANY CLAIM. 3. THE UNDERSIGNED CRAVES LEAVE TO ADD, OR ALTER AN Y POINT. 3. IN THIS CASE ORIGINAL RETURN OF INCOME DECLARING INCOME OF RS.44,800/- WAS FILED BY THE ASSESSEE ON 19.03.2007. ON RECEIVING INFORMA TION THAT ASSESSEE WAS HAVING AN UNDISCLOSED BANK A/C NO.CD-1094 MAINTAINED WITH CEN TRAL BANK OF INDIA, N.S.ROAD, BR.,KOLKATA SINCE 13-09-2000 THE AO HAD REASON TO B ELIEVE THAT THE TRANSACTIONS THROUGH THE SAID BANK A/C HAD NOT BEEN REFLECTED WH ILE FILING THE RETURN OF INCOME FOR THIS A.Y.2006-07. THUS PROCEEDING U/S 147 WAS INITI ATED AND NOTICE U/S 148 WAS ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 2 ISSUED REQUIRING THE ASSESSEE TO FILE HIS RETURN OF INCOME. IN COMPLIANCE TO THE SAID NOTICE THE ASSESSEE FILED THE RETURN OF INCOME DECL ARING INCOME OF RS.2,01,263/- INCORPORATING INCOME UNDER THE HEAD BUSINESS & PROF ESSION TO THE TUNE OF RS.1,56,463. 3.1. THE ASSESSEE WAS ASKED BY THE A.O. TO GIVE TH E DETAILS OF HIS BUSINESS INCOME, ITS NATURE, CONSTITUTION ETC. WITH TRADE LICENCE. I N RESPONSE A.R. OF THE ASSESSEE FILED A WRITTEN SUBMISSION DATED NIL ON 07-09-09, STATING T HAT THE BUSINESS INCOME OF RS.1,56,468/- DECLARED IN THE RETURN OF INCOME FOR A.Y.2006-07, IN PURSUANCE OF NOTICE U/S 148 REFERS TO FINANCE COMMISSION FOR A CCOMMODATION ENTRIES PROVIDED TO THE PARTIES. THE SAID COMMISSION WAS RECEIVED ON AV ERAGE @ 0.25% TOWARDS TO THE TRANSACTIONS EFFECTED THROUGH ACCOUNT NO.CD 1094 WI TH CENTRAL BANK OF INDIA, N.S.ROAD BRANCH, KOLKATA WHICH WAS OPERATED FOR SOL E PURPOSE OF THE BUSINESS MENTIONED ABOVE BY THE PROPRIETOR OF THE FIRM M/S.P .P.TRADERS. THE ASSESSEE ALSO SUBMITTED THAT HE RECEIVED CASH FROM DIFFERENT PART IES WHICH WERE DEPOSITED INTO THE ABOVE MENTIONED BANK ACCOUNT AND PROVIDED ENTRIES T O THEM BY ISSUING CHEQUES DRAWN ON THE SAID BANK. 3.2. THE ASSESSEE ALSO CONTENDED BEFORE THE AO THAT CONSIDERING THE TRANSACTIONS WHICH WERE BENAMI IN NATURE, THE ASSESEE NEVER FELT IT NECESSARY TO MAINTAIN ANY ACCOUNTS AND/OR PARTICULARS OF THE PARTIES TO WHOM THE ACCOMMODATION ENTRIES WERE GIVEN, THEREFORE, HE WAS UNABLE TO FURNISH THE DETA ILS OF THE PARTIES TO WHOM CHEQUES WERE ISSUED THROUGH CD ACCOUNT NUMBER 1094 IN CENTR AL BANK OF INDIA. THEREAFTER THE AO ASKED THE ASSESSEE TO GIVE DETAIL S REGARDING COMPLETE NAME AND ADDRESS OF THE PARTIES FROM WHOM CASH WAS RECEIVED AND TO WHOM THE CHEQUE WAS ISSUED FROM THE SAID ACCOUNT. THE ASSESSEE WAS ASKE D TO SUBMIT HIS BALANCE SHEET AND ALSO THE BOOKS OF ACCOUNT. THE ASSESSEE RESPONDED T HAT NO BOOKS WERE MAINTAINED AND THERE WAS NO ASSETS OR LIABILITY AND NO BALANCE SHE ET WAS MAINTAINED. DESPITE REPEATED REQUEST FROM THE AO ASSESSEE FAILED TO SUBMIT ANY D ETAIL WHATSOEVER IN THIS REGARD. 3.3. CONSIDERING THE ABOVE AO CONCLUDED AS UNDER :- DURING THE COURSE OF SCRUTINY PROCEEDINGS THE ASSE SSEE WAS UNABLE TO EXPLAIN THE SOURCE OF THE DEPOSITS IN HIS UNDISCLOSED BANK ACCO UNT CD A/C NO.1094, IN CENTRAL ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 3 BANK OF INDIA. HE WAS UNABLE TO ESTABLISH THE GENUI NENESS OF THE SOURCES OF THE CREDIT ENTRIES IN THE ABOVE ACCOUNT. THE ASSESSEE WAS ALSO UNABLE TO PROVE THE GENUINENESS OF HIS CLAIM OF RECEIVING COMING DURING THE CONCERNED YEAR. THE ASSESSEE CLAIMED OF NOT KNOWING THE D ETAILS OF THE PARTIES TO WHOM CHEQUES WERE ISSUED OR CLEARING TRANSACTION WERE MADE THROU GH THE BANK ACCOUNT CD 1094. BUT AS THE CHEQUES WERE ISSUED BY THE ASSESSEE HIMSELF, HIS ABOVE CLAIMED IS BOGUS AND UNACCEPTABLE. THE ASSESSEE HAS GIVEN FALSE STATEMEN T TO PROTECT THE IDENTITY OF THE OTHER PARTIES WITH WHOM HE HAS ENTERED INTO A TRANSACTION THROUGH HIS BANK ACCOUNT CD 1094, BY DOING SO THE ASSESSEE HAS TRIED TO MISLED THE DE PARTMENT. BASED ON THE ABOVE FACTS OF THE CASE AND THE AVAILABLE DOCUMENTS I HEREBY CONCLUDE THAT THE ASSESSEE HAD AN UNDISCLOSED BANK ACCOUNT CD A/C NO.1094, IN CENTRAL BANK OF INDIA IN WHICH TOTAL DEPOSIT OF RS.6,30,89, 413/- OUT OF WHICH TOTAL CASH DEPOSIT WAS RS.5,56,69,850/- (AS PER ANNEXURE A) AND TOTAL CLEARING CREDITS WAS RS.74,19,563/- (AS PER ANNEXURE B) WAS MADE DURING THE F.Y. 2005-0 6. AS THE ASSESSEE WAS UNABLE TO EXPLAIN AND PROVE THE SOURCES OF THE ABOVE DEPOSITS THE ENTIRE DEPOSITS OF RS.6,30,89,413/- IS HEREBY TREATED AS HIS UNDISCLOS ED CASH CREDIT FROM HIS UNDISCLOSED SOURCE AND ADDED TO HIS TOTAL INCOME FOR THE F.Y.20 05-06. 3.4. FOR THE ABOVE CONCLUSION THE AO PLACED RELIANC E ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF M.SUNDARAM VS ASSI STANT COMMISSIONER OF INCOME TAX 287 ITR 145 (MAD) AND THE DECISION OF HONBLE A PEX COURT IN THE CASE OF KALE KHAN MOHAMMAD HANIF VS CIT 50 ITR 1. 4. AGAINST THE ABOVE ORDER THE ASSESSEE WENT IN APP EAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) THE ASSESSEE MADE A PLEA THAT EVEN IF CASH DEPOSITS ARE CONSIDERED AS BELONGING TO THE ASSESSEE ENTIRE AMOU NT CANNOT BE TAXED LEGALLY AS THERE ARE REGULAR DEPOSITS AND WITHDRAWALS BOTH BY WAY OF CHEQUE AND CASH AND NO MATERIAL HAS BEEN FOUND DURING THE ASSESSMENT PROCEEDINGS TH AT THE WITHDRAWAL HAS BEEN USED BY THE ASSESSEE FOR ANY EXPENSE OR FOR ANY INVESTME NT. IT MEANS THAT THE MONEY WITHDRAWN WAS REGULARLY ROUTED THROUGH THE BANK ACC OUNT AND HENCE IT WAS PLEADED THAT ONLY THE PEAK CREDIT EMERGING IN THE ACCOUNT S HOULD BE TAXED. IN THIS REGARD THE ASSESSEE REFERRED TO SEVERAL ITAT DECISIONS. THE LD . CIT(A) ACCEPTED THE ABOVE CONTENTIONS OF THE ASSESSEE. HE OBSERVED THAT THERE WAS NO MATERIAL ON RECORD TO SHOW THAT THE AMOUNT WITHDRAWN WAS UTILIZED BY THE ASSES SEE FOR ANY EXPENSE OR FOR ANY INVESTMENT. THE LD. CIT(A) REFERRED TO ITAT DECISIO NS AND CONCLUDED AS UNDER :- ON CAREFUL CONSIDERATION OF THE FACTS OF THE CASE, THE SUBMISSIONS OF THE A/R AND THE CASE LAWS RELIED UPON BY THE A/R I AM OF THE CONSID ERED VIEW THAT THE ADDITION OF RS.6,30,89,413/- BEING THE ENTIRE AMOUNT OF THE DEP OSITS IN THE BANK ACCOUNT NUMBER ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 4 1094 DURING THE YEAR UNDER CONSIDERATION IS EXCESSI VE. AFTER CONSIDERING THE CASE LAW RELIEF UPON THE A/R IT IS HELD THAT IT IS ONLY THE AMOUNT OF PEAK CREDIT BALANCE IN THE SAID UNDISCLOSED BANK ACCOUNT THAT NEEDS TO BE ADDED AS ASSESSEES UNDISCLOSED INCOME. FROM THE PERUSAL OF THE STATEMENT OF THE SAID UNDIS CLOSED BANK ACCOUNT IT IS OBSERVED THAT THE PEAK CREDIT BALANCE DURING THE YEAR UNDER CONSIDERATION IN THE SAID UNDISCLOSED BANK ACCOUNT WAS OF RS.16,36,060/-. THEREFORE, THE ADDITION ON ACCOUNT OF UNEXPLAINED CASH CREDITS IS RESTRICTED TO RS.16,36,060/-. ACCOR DINGLY, THE ASSESSEE GETS ONLY A RELIEF OF RS.6,14,53,353/-. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BE FORE US. 5. IT HAS BEEN CONTENDED BY THE REVENUE THAT THE LD . CIT(A) HAS ERRED IN IGNORING THE DECISIONS OF HONBLE MADRAS HIGH AND HONBLE AP EX COURT CITED BY THE AO. IT IS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS ERRED IN ACCEPTING THE ASSESSEES CONTENTION THAT HE WAS PROVIDING ENTRIES TO VARIOUS PERSONS WI THOUT ANY DOCUMENTARY EVIDENCES AND BOOKS OF ACCOUNT. IT WAS FURTHER SUBMITTED THAT THERE WAS NO BASIS FOR MAKING ASSESSMENT ON PEAK CREDIT BASIS. 6. THE LD. COUNSEL OF THE ASSESSEE, ON THE OTHER HA ND, SUBMITTED THAT THE ASSESSEE SHOULD BE TAXED ON PEAK CREDIT BASIS. IN THIS REGAR D HE ALSO REFERRED TO SEVERAL ITATS DECISIONS WHICH READ AS UNDER :- I) ITO VS SHRI GANGA PRASAD VYAS VIDE ITA NO.2069/KOL/ 2010 ORDER DT.2.03.2012 II) ITO VS PRAVAKAR MAJUMDER VIDE ITA NO.459&469/KOL/20 11 ORDER DATED 08.01.214. III) ITO VS UDAY SHANKAR MAHAWAR VIDE ITA NO.1903/KOL/20 09 ORDER DATED 16.07.2010 IV) ITO VS SHRI PRAMOD T.JARIWALA VIDE ITA NO.2425/AHD/ 2009 ORDER DATED 29.04.20111. V) ITO VS SHRI ARUN KUMAR TIWARI VIDE ITA NO.4294/DEL /2010 ORDER DATED 10.06.2011. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE RECORDS. WE FIND THAT IN THIS CASE UNDISCLOSED BANK ACCOUNT OF THE ASSESSEE WAS DISCOVERED. IN THE SAID ACCOUNT AO NOTED THAT THERE WERE DEPOSITS TOTA LING TO RS.6,30,89,413/-. ASSESSEE INITIALLY SUBMITTED BEFORE THE AO THAT THE ASSESSEE WAS ENGAGED IN EARNING FINANCE COMMISSION FOR PROVIDING ACCOMMODATION ENTRIES TO T HE PARTIES. THE SAID COMMISSION ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 5 WAS RECEIVED ON AN AVERAGE OF 0.25% TOWARDS THE TRA NSACTIONS. HOWEVER, NO EVIDENCE WHATSOEVER TO SUPPORT THE ABOVE CONTENTION WAS PROD UCED BEFORE AO. IN THESE CIRCUMSTANCES AO PLACED RELIANCE UPON THE DECISION OF HONBLE APEX COURT IN THE CASE OF KALE KHAN MOHAMMAD HANIF VS CIT AND HONBLE MADRAS HIGH COURT IN THE CASE OF M.SUNDARAM VS ACIT (SUPRA). NOW IN ASSESSEE S APPEAL BEFORE THE LD. CIT(A) IT WAS CONTENDED THAT EVEN IF ASSESSEES CLAIM OF E ARNING FINANCE COMMISSION IS NOT ACCEPTED THE ASSESSEE SHOULD BE TAXED ON THE BASIS OF PEAK CREDIT IN THE ACCOUNT. THE LD. CIT(A) HAS ACCEPTED THE ABOVE SUBMISSIONS OF TH E ASSESSEE. THE LD. CIT(A) HAS PUT THE ONUS ON THE AO TO PROVE THAT THE AMOUNT WITHDRA WN WAS UTILIZED BY THE ASSESSEE FOR ANY EXPENSE OR FOR ANY INVESTMENT. WE FIND THAT THERE IS NO EVIDENCE WHATSOEVER IN SUPPORT OF THE ASSESSEES CONTENTION EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A). IT IS UNDISPUTED THAT IN THE UNDISCLOSED BANK ACCOUNT OF THE ASSESSEE THERE WERE DEPOSITS TO THE TUNE OF 6,30,89,413/-. IN THESE CIRCUMSTANCE S, IN OUR CONSIDERED OPINION THE LD. CIT(A) HAS ERRED IN IGNORING THE DECISIONS OF HONB LE MADRAS HIGH COURT AND HONBLE APEX COURT RELIED UPON BY THE AO. 7.1. WE FIND THAT IN THE CASE OF M.SUNDARAM VS ACIT REPORTED IN 287 ITR 145 THE HONBLE MADRAS HIGH COURT HAS DEALT WITH AND HELD A S UNDER(HEAD NOTES ONLY):- THE ASSESSEE FILED RETURNS FOR THE ASSESSMENT YEAR S 1991-92 AND 1992-93 DECLARING SALARY FROM UAND K BESIDES INTEREST INCOME FROM BAN K DEPOSITS. ON THE BASIS OF NEWS PUBLISHED IN THE NEWSPAPERS ON AUGUST 23, 1991, THE REVENUE CONDUCTED A SEARCH OPERATION AT CANARA BANK AND STATE BANK OF INDIA AN D FOUND A SUM OF RS.2,04,27,106 CREDITED AT VARIOUS BRANCHES OF STATE BANK OF INDIA AND CENTRAL CO-OPERATIVE BANK IN THE NAME OF THE ASSESSEE. THE ASSESSEE THROUGH HIS FATHER WITHDREW ALL THE MONEY JUST PRIOR TO THE DATE OF RAID. THE ASSESSEE EXPLAINED B EFORE THE ASSESSING OFFICER THAT THE SAID AMOUNT BELONGED TO ONE M AND ONE J WHO CAME FO R BLEACHING WORK TO U BUT COULD NOT PROVE THE ADDRESS AND OTHER DETAILS OF THE SAID TWO PERSONS. THE ASSESSING OFFICER ADDED THE ENTIRE AMOUNT AS UNEXPLAINED MONEY UNDER SECTION 69A OF THE INCOME-TAX ACT, 1961, TO THE TOTAL INCOME OF THE ASSESSEE. THE APPE LLATE AUTHORITIES CONFIRMED THE ADDITION MADE IN THE RESPECTIVE ASSESSMENT YEARS IN VOKING SECTION 69A IN THE REOPENED ASSESSMENTS. ON APPEAL : HELD, DISMISSING THE APPEALS, THAT WHEN THE ASSESSE E CLAIMS THAT V AND J WHO CAME FOR BLEACHING WORK TO U HANDED OVER THE HUGE SUM OF MON EY FOR SAFE CUSTODY, HE MIGHT HAVE KNOWN THE ADDRESS, TELEPHONE NUMBER AND OTHER PARTICULARS. NO BUSINESSMAN WOULD RECEIVE A SUM OF RS.2 CRORES WITHOUT KNOWING THE IDENTITY AND ADDRESS. THE ADMITTED FACTS WERE THAT THE ENTIRE SUM WAS CREDITE D IN THE BANK ACCOUNTS OF THE ASSESSEE BY CASH AND THE ENTIRE AMOUNT WAS IN THE P OSSESSION OF THE ASSESSEE. THE ASSESSEE WAS RECEIVING A SMALL AMOUNT AS SALARY AND HE HAD NOT DISCLOSED THE TRUE PICTURE OF HOW HE CAME INTO POSSESSION OF SUCH A HU GE AMOUNT. SINCE THE ASSESSEE FAILED ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 6 TO PROVE THAT THE MONEY DID NOT BELONG TO HIM, THE AUTHORITIES WERE RIGHT IN ASSESSING IT UNDER SECTION 69A. 7.2. IN THE CASE OF KALE KHAN MOHAMMAD HANIF VS CIT REPORTED IN 50 ITR 1. THE EXPOSITION OF THE HONBLE APEX COURT IS AS UNDER :- IT IS WELL ESTABLISHED THAT THE ONUS OF PROVING TH E SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN RECEIVED BY THE ASSESSEE IS ON HIM. IF HE DISPUTES LIABILITY FOR TAX, IT IS FOR HIM TO SHOW EITHER THAT THE RECEIPT WAS NOT INCOME OR T HAT IF IT WAS, IT WAS EXEMPT FORM TAXATION UNDER THE PROVISIONS OF THE INCOME-TAX ACT . IN THE ABSENCE OF SUCH PROOF, THE INCOME-TAX OFFICER IS ENTITLED TO TREAT IT AS TAXAB LE INCOME. A.GOVINDARAJULU MUDALIAR V.COMMISSIONER OF INCOMETA X [1958] 34 ITR 807 (SC) IN THE ORIGINAL ASSESSMENTS FOR THE ASSESSMENT YEAR S 1045-46 AND 1947-48 THE ASSESSEES ACCOUNTS WERE NOT FOUND COMPLETE AND REL IABLE AND HIS INCOME FROM HIS TWO BUSINESSES WAS COMPUTED BY ESTIMATING HIS TOTAL SAL ES AND ASSESSING THE GROSS PROFITS ON THE BASIS OF CERTAIN PERCENTAGES. CERTAIN CASH CRED ITS IN THE ACCOUNTS OF THE ASSESSEE WHICH HAD BEEN OVERLOOKED IN THE ORIGINAL ASSESSMEN T WERE DETECTED. IN REASSESSMENT PROCEEDINGS UNDER SECTION 34 OF THE INDIAN INCOME-T AX ACT, 1922, THE ASSESSEES EXPLANATION THAT THEY DID NOT REPRESENT INCOME WAS REJECTED AND THEY WERE BROUGHT TO TAX, AS REPRESENTING INCOME FROM UNDISCLOSED SOURCE S, IN ADDITION TO THE INCOME WHICH HAD BEEN ESTIMATED IN THE ORIGINAL ASSESSMENTS : HELD, THAT THE AMOUNTS OF THE CASH CREDITS COULD BE ASSESSED TO TAX AS INCOME FROM UNDISCLOSED SOURCES IN ADDITION TO THE BUSINESS INC OME COMPUTED BY ESTIMATE. THE TAXING AUTHORITIES WERE NOT PRECLUDED FROM TREATING THE AMOUNTS OF THE CREDIT ENTRIES AS INCOME FROM UNDISCLOSED SOURCES SIMPLY BECAUSE THE ENTRIES APPEARED IN THE BOOKS OF A BUSINESS WHOSE INCOME THEY HAD PREVIOUSLY COMPUTED ON A PERCENTAGE BASIS. 7.3. IN THE CASE OF ROSHAN DI HATTI VS CIT REPORTED IN 107 ITR 938 THE HONBLE APEX COURT HAS EXPOUNDED AS UNDER :- THE LAW IS WELL SETTLED THAT THE ONUS OF PROVING T HE SOURCE OF A SUM OF MONEY FOUND TO HAVE BEEN RECEIVED BY AN ASSESSEE IS ON HIM. IF HE DISPUTES THE LIABILITY FOR TAX, IT IS FOR HIM TO SHOW EITHER THAT THE RECEIPT WAS NOT INCOME OR THAT IF IT WAS, IT WAS EXEMPT FROM TAXATION UNDER THE PROVISIONS OF THE ACT. IN THE AB SENCE OF SUCH PROOF, THE REVENUE IS ENTITLED TO TREAT IT AS TAXABLE INCOME. TO PUT IT D IFFERENTLY, WHERE THE NATURE AND SOURCE OF A RECEIPT, WHETHER IT BE OR MONEY OR OF OTHER PR OPERTY, CANNOT BE SATISFACTORILY EXPLAINED BY THE ASSESSEE, IT IS OPEN TO THE REVENU E TO HOLD THAT IT IS THE INCOME OF THE ASSESSEE AND NO FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT INCOME IS FROM ANY PARTICULAR SOURCE. 7.4. A READING OF THE ABOVE CASE LAWS MAKES IT CLEA R THAT LAW IS WELL SETTLED THAT THE ONUS OF PROVING THE SOURCE OF A SUM OF MONEY RECEIV ED BY THE ASSESSEE IS UPON HIM. IF HE DISPUTES THE LIABILITY FOR TAX, IT IS FOR HIM TO SHOW EITHER THAT RECEIPT WAS NOT INCOME OR THAT IT WAS IT WAS EXEMPT FROM TAXATION UNDER TH E PROVISIONS OF INCOME TAX ACT. ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 7 NOW IN THE PRESENT CASE WE FIND THAT A SUM OF OVER RS.6 CRORES WERE FOUND DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE. THE ASSESSEE H AS NOT DISCLOSED THE SAME WHEN CONFRONTED IN THIS REGARD AT THE INITIAL STAGE, HE SUBMITTED BEFORE THE AO THAT THE SUM WAS RECEIVED TOWARDS PROVIDING ENTRIES FOR WHICH HE EARNED ONLY COMMISSION. NOW THIS SUBMISSION WAS WITHOUT ANY SUPPORTING EVIDENCE AND DESPITE REPEATED OPPORTUNITIES GIVEN BY THE AO THE ASSESSEE FAILED T O SUBSTANTIATE THE SUBMISSIONS. HE DID NOT DISCLOSE FROM WHOM THE MONEY WAS RECEIVED A ND TO WHOM THE SAME WAS PAID. 7.5. NOW BEFORE THE LD. CIT(A) THE ASSESSEE CLAIMED THAT HE SHOULD BE TAXED ON THE BASIS OF PEAK CREDIT IN THE ACCOUNT. IT WAS SUBMITT ED THAT NO EVIDENCE HAS BEEN FOUND BY THE AO THAT ASSESSEE HAS UTILIZED THE WITHDRAWAL FROM THE SAID ACCOUNT FOR MEETING ANY EXPENDITURE OR MAKING ANY INVESTMENT. THE LD. C IT(A) HAS ACCEPTED THE SUBMISSION. NOW WE FIND THAT THIS IS CONTRADICTORY TO THE RATIO EMANATING FROM THE CASE LAWS OF THE HONBLE MADRAS HIGH COURT AND HON BLE APEX COURT CITED ABOVE. FROM THE CASE LAWS REFERRED TO ABOVE IT IS CLEAR TH AT WHERE THE NATURE AND THE SOURCE OF THE RECEIPT CANNOT BE SATISFACTORILY EXPLAINED BY T HE ASSESSEE IT IS OPEN TO THE REVENUE TO HOLD THAT IT IS THE INCOME OF THE ASSESSEE AND N O FURTHER BURDEN LIES ON THE REVENUE TO SHOW THAT THAT INCOME WAS FROM ANY PARTICULAR SO URCE. HENCE, UNDER THESE CIRCUMSTANCES IT IS EVIDENT THAT GIVING VARIOUS THE ORIES OF PROBABILITIES AND GIVING UNDUE BENEFIT TO THE ASSESSEE IS UNTENABLE IN THE L IGHT OF THE ABOVE CASE LAWS. THE ASSESSEE HAS RECEIVED OVER RS.6 CRORES AND DEPOSITE D THE SAME IN THE BANK ACCOUNT AND HAS ALSO WITHDRAWN THE SAME AND GIVEN TO OTHER PERS ONS. NOW THE ASSESSEE IS NOT AT ALL PREPARED TO DIVULGE THE NAMES OR TO PROVIDE ANY DET AIL WHATSOEVER. IN OUR CONSIDERED OPINION THE REVENUE IS VERY MUCH CORRECT IN TREATIN G THE SAME AS INCOME OF THE ASSESSEE. 7.6. AS REGARDS THE DECISION OF THE TRIBUNAL REFERR ED TO BY THE LD. CIT(A) AND THE LD. COUNSEL OF THE ASSESSEE WE FIND THAT THESE WERE THE FINDINGS OF THE FACTS DEPENDING UPON THE FACTS OBTAINING IN THOSE CASES. IN THE PRE SENT CASE WE FIND THAT THE ASSESSEE HAS TAKEN CONTRADICTORY STAND. MOREOVER, IN VIEW O F THE DECISION OF THE HONBLE APEX COURT AND HONBLE HIGH COURT CITED ABOVE, IN OUR CO NSIDERED OPINION, THE PRECEDENCE ITA.NO.1050/KOL/2011 SHRI PIYUSH PODDAR A.YR.2006-07 8 EMANATING FROM HIGHER JUDICIAL FORUMS PREVAILE OVER THOSE EMANATING FROM LOWER JUDICIAL FORUMS. IN THESE CIRCUMSTANCES, IN THE BAC KGROUND OF THE AFORESAID DISCUSSION AND PRECEDENTS WE SET ASIDE THE ORDER OF THE LD. CI T(A) AND RESTORE THE ORDER OF THE AO. 8. IN THE RESULT THE APPEAL OF THE REVENUE STANDS A LLOWED. ORDER PRONOUNCED IN THE COURT ON 07.08.2014. SD/- SD/- [ GEORGE MATHAN ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 07.08.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. SHRI PIYUSH PODDAR, 4, WEST GHOSH PARA ROAD, 24-PGS (N),WEST BENGAL. 2 I.T.O., WARD-51(3), KOLKATA. 3 . CIT(A)-XXXII, KOLKATA 4. CI T KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY, BY ORDER, ASST. REGISTRAR , ITAT, KOLKATA BENCHES